Court Addressed Lower Court’s Rulings on the Civil RICO Claim, Including Finding Sufficient “Continuity” 

Planned Parenthood Federation of America, Inc., v. Troy Newman, et al., 2022 WL 13613963 (9th Cir., Oct. 21, 2022)

The Court found no error in the district court’s rulings on the RICO claim.

Interstate Commerce Nexus

Planned Parenthood’s RICO claim satisfied the minimal interstate commerce nexus requirement under 18 U.S.C. § 1028(c)(3)(A).  The production and transfer of the fake driver’s licenses affected interstate commerce because Appellants used the fake licenses to gain admission to out-of-state conferences and facilities, and then presented those licenses at the out-of-state conferences and facilities, which were operating in interstate commerce. See United States v. Turchin, 21 F.4th 1192, 1202–03 (9th Cir. 2022). And further, Daleiden’s use of the internet to search for and arrange the purchase of two fake driver’s licenses was “intimately related to interstate commerce.” See United States v. Sutcliffe, 505 F.3d 944, 952 (9th Cir. 2007).

Threat of Continuity Found

The Court also found the district court did not err in denying Appellants’ renewed motion for judgment as a matter of law regarding the required pattern of predicate acts necessary to violate RICO. A pattern may be established by proof that defendants’ conduct possessed “open-ended continuity,” i.e., that their conduct “by its nature project[ed] into the future with a threat of repetition.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989) (emphasis added). “As long as a threat of continuing activity exists at some point during the racketeering activity, the continuity requirement is satisfied.” Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 194 n.5 (9th Cir. 1987).

The evidence showed that various Appellants had previously advocated for or used undercover sting operations targeting Planned Parenthood, and CMP and BioMax were still extant and intended to carry out future projects. The district court did not err in determining that “there was sufficient evidence on which a reasonable jury could rely to establish open-ended continuity.”

Proximate Causation

The district court did not err in denying Appellants’ post-trial motion for judgment as a matter of law on RICO proximate cause. There was a direct relationship between Appellants’ production and transfer of the fake driver’s licenses and the alleged harm. See Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 12 (2010)see also Harmoni Intl. Spice, Inc. v. Hume, 914 F.3d 648, 651–52 (9th Cir. 2019). The district court permitted only infiltration damages and security damages, limiting any difficulty in determining what damages were attributable to Appellants’ RICO violation; there is no risk of Planned Parenthood recovering duplicative damages; holding Appellants liable discourages illegal behavior; and there are no more directly injured victims. See Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharms. Co. Ltd., 943 F.3d 1243, 1249–52 (9th Cir. 2019)Harmoni, 914 F.3d at 652.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s